Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions, 17548-17556 [2011-6670]
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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations
except for claims over which the Board
has original jurisdiction.
(c) Remand for a Statement of the
Case. In cases before the Board in which
a claimant has timely filed a Notice of
Disagreement with a determination of
the agency of original jurisdiction on a
claim, but the record reflects that the
agency of original jurisdiction has not
subsequently granted the claim in full
and has not furnished the claimant with
a Statement of the Case, the Board shall
remand the claim to the agency of
original jurisdiction with instructions to
prepare and issue a Statement of the
Case in accordance with the provisions
of subpart B of this part. A remand for
a Statement of the Case is not required
if the claimant, consistent with the
withdrawal requirements of § 20.204 of
this chapter, withdraws the Notice of
Disagreement.
(d) Exceptions. A remand or referral
to the agency of original jurisdiction is
not necessary for any of the following
purposes:
(1) Clarifying a procedural matter
before the Board, including the
appellant’s choice of representative
before the Board, the issues on appeal,
or requests for a hearing before the
Board;
(2) Considering law not already
considered by the agency of original
jurisdiction, including, but not limited
to, statutes, regulations, and court
decisions;
(3) Reviewing additional evidence
received by the Board, if, pursuant to
§ 20.1304(c) of this chapter, the
appellant or the appellant’s
representative waives the right to initial
consideration by the agency of original
jurisdiction, or if the Board determines
that the benefit or benefits to which the
evidence relates may be fully allowed
on appeal;
(4) Requesting an opinion under
§ 20.901 of this chapter;
(5) Supplementing the record with a
recognized medical treatise; or
(6) Considering a matter over which
the Board has original jurisdiction.
(Authority: 38 U.S.C. 7102, 7103(c), 7104(a),
7105).
PART 20—BOARD OF VETERANS’
APPEALS: RULES OF PRACTICE
The revisions read as follows:
§ 20.903 Rule 903. Notification of evidence
to be considered by the Board and
opportunity for response.
*
*
*
*
*
(b) If the Board supplements the
record with a recognized medical
treatise—(1) General. If, pursuant to
§ 19.9(d)(5) of this chapter, the Board
supplements the record with a
recognized medical treatise, the Board
will notify the appellant and his or her
representative, if any, that the Board
will consider such recognized medical
treatise in the adjudication of the
appeal. The notice from the Board will
contain a copy of the relevant portions
of the recognized medical treatise. The
appellant will be given 60 days after the
date of the notice described in this
section to file a response, which may
include the submission of relevant
evidence or argument. The date the
Board gives the notice will be presumed
to be the same as the date of the notice
letter for purposes of determining
whether a response was timely filed.
(2) Exception. The notice described in
paragraph (b)(1) of this section is not
required if the Board uses a recognized
medical treatise or medical dictionary
for the limited purpose of defining a
medical term and that definition is not
material to the Board’s disposition of
the appeal.
5. In § 20.1304, revise paragraph (b)(2)
to read as follows:
■
§ 20.1304 Rule 1304. Request for change
in representation, request for personal
hearing, or submission of additional
evidence following certification of an appeal
to the Board of Veterans’ Appeals.
*
*
*
*
*
(b) * * *
(2) Exception. The motion described
in paragraph (b)(1) of this section is not
required to submit evidence in response
to a notice described in § 20.903 of this
chapter.
*
*
*
*
*
[FR Doc. 2011–7395 Filed 3–29–11; 8:45 am]
BILLING CODE 8320–01–P
3. The authority citation for part 20
continues to read as follows:
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■
Authority: 38 U.S.C. 501(a) and as noted
in specific sections.
Subpart J—Action by the Board
■
■
■
4. Amend § 20.903 by:
a. Revising the section heading.
b. Revising paragraph (b).
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2004–0014: FRL–9280–8]
RIN 2060–AQ73
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Reconsideration of
Inclusion of Fugitive Emissions;
Interim Rule; Stay and Revisions
Environmental Protection
Agency (EPA).
ACTION: Interim rule; stay and revisions.
AGENCY:
EPA is taking an interim
action to effectuate and extend a stay of
the final rule entitled ‘‘Prevention of
Significant Deterioration (PSD) and
Nonattainment New Source Review
(NSR): Reconsideration of Inclusion of
Fugitive Emissions’’ (‘‘Fugitive
Emissions Rule’’) published in the
Federal Register on December 19, 2008.
The Fugitive Emissions Rule under the
Federal NSR program required that
fugitive emissions be included in
determining whether a physical or
operational change results in a major
modification only for sources in
designated industries. EPA issued a stay
of the Fugitive Emissions Rule on March
31, 2010, that was effective for 18
months through October 3, 2011. This
action supersedes the stay and thereby
corrects potential confusion caused by
that stay. To effectuate a stay of the
Fugitive Emissions Rule, this action
clarifies the stay and the revisions of
specific paragraphs in the NSR
regulations that were affected by the
Fugitive Emissions Rule. This action
also extends the stay until EPA
completes its reconsideration of the
Fugitive Emissions Rule.
DATES: Effective date: This interim rule
is effective March 30, 2011.
The administrative stay of provisions
in 40 CFR 51.165, 51.166, Appendix S
to part 51, and 40 CFR 52.21 published
on March 31, 2010 (75 FR 16012) is
lifted; and
The following Code of Federal
Regulations sections are stayed
indefinitely: 40 CFR 51.165(a)(1)(v)(G)
and (a)(1)(vi)(C)(3); 51.166(b)(2)(v) and
(b)(3)(iii)(d); Appendix S to Part 51,
Paragraph II.A.5(vii); and 52.21(b)(2)(v)
and (b)(3)(iii)(c). The EPA will publish
a document in the Federal Register
lifting this stay.
Comment date: Comments must be
received on or before April 29, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SUMMARY:
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OAR–2004–0014, by one of the
following methods:
• https://www.regulations.gov. Follow
the online instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
• Fax: (202) 566–1741.
• Mail: Air and Radiation Docket,
Environmental Protection Agency, Mail
code 6102T, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460.
• Hand Delivery: EPA Docket Center,
Public Reading Room, EPA West, Room
3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
the applicable docket. EPA’s policy is
that all comments received will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
information claimed to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Do not submit
information that you consider to be CBI
or otherwise protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the EPA Docket Center, Public Reading
Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC 20460. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1742,
and the telephone number for the Air
Docket is (202) 566–1744.
Mr.
Peter Keller, Air Quality Policy
Division, (C504–03), U.S.
Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number (919) 541–5339; fax
number (919) 541–5509; or e-mail
address: keller.peter@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this
action include sources in all industry
groups. The majority of sources
potentially affected are expected to be in
the following groups.
SIC a
Industry group
17549
Electric Services ....................................................................................................................
491
Petroleum Refining ................................................................................................................
Industrial Inorganic Chemicals ..............................................................................................
291
281
Industrial Organic Chemicals ................................................................................................
286
Miscellaneous Chemical Products ........................................................................................
289
Natural Gas Liquids ...............................................................................................................
Natural Gas Transport ...........................................................................................................
Pulp and Paper Mills .............................................................................................................
Paper Mills .............................................................................................................................
Automobile Manufacturing .....................................................................................................
132
492
261
262
371
Pharmaceuticals ....................................................................................................................
Mining ....................................................................................................................................
Agriculture, Fishing and Hunting ...........................................................................................
283
211, 212, 213
111, 112, 113,
115
NAICS b
221111, 221112, 221113, 221119,
221121, 221122
324110
325181, 325120, 325131, 325182,
211112,
325998,
331311,
325188
325110, 325132, 325192, 325188,
325193, 325120, 325199
325520, 325920, 325910, 325182,
325510
211112
486210, 221210
322110, 322121, 322122, 322130
322121, 322122
336111, 336112, 336211, 336992,
336322,
336312,
336330,
336340,
336350,
336399,
336212, 336213
325411, 325412, 325413, 325414
21
11
a Standard
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b North
Industrial Classification
American Industry Classification System.
Entities potentially affected by this
action also include state, local, and
tribal governments.
B. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit
information containing CBI to EPA
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through https://www.regulations.gov or
e-mail. Send or deliver information
identified as CBI only to the following
address: Mr. Roberto Morales, OAQPS
Document Control Officer (C404–02),
U.S. EPA, Office of Air Quality Planning
and Standards, Research Triangle Park,
North Carolina 27711, Attention: Docket
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ID EPA–HQ–OAR–2004–0014. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD ROM that
you mail to EPA, mark the outside of the
disk or CD ROM as CBI and then
identify electronically within the disk or
CD ROM the specific information that is
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claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting your comments,
remember to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The Agency
may ask you to respond to specific
questions or organize comments by
referencing a Code of Federal
Regulations (CFR) part or section
number.
• Explain why you agree or disagree,
suggest alternatives, and substitute
language for your requested changes.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
C. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, an electronic copy of this
interim rule will also be available on the
World Wide Web. Following signature
by the EPA Administrator, a copy of this
interim rule will be posted in the
regulations and standards section of our
NSR home page located at https://
www.epa.gov/nsr.
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D. How is this preamble organized?
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my
comments for EPA?
C. Where can I get a copy of this document
and other related information?
D. How is this preamble organized?
II. Background Information
III. This Action
A. Why is EPA staying, reinstating, or
revising, as appropriate, the regulatory
text in specific paragraphs affected by
the Fugitive Emissions Rule?
B. Why is EPA issuing an interim rule?
C. What specific revisions are being made?
IV. Fugitive Emissions Rule Reconsideration
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V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health and
Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
VI. Statutory Authority
II. Background Information
On December 19, 2008, EPA (‘‘we’’)
issued a final rule revising the
requirements of the major NSR
programs regarding the treatment of
fugitive emissions (‘‘Fugitive Emissions
Rule’’) 73 FR 77882. The final rule
required fugitive emissions to be
included in determining whether a
physical or operational change results in
a major modification only for sources in
industries that have been designated
through rulemaking under section 302(j)
of the Clean Air Act (Act or CAA).
Previously, EPA rules required that
fugitive emissions be included in major
modification applicability
determinations for all source categories.
The final rule amended all portions of
the major NSR program regulations:
Permit requirements, the PSD program,
and the emission offset interpretive
ruling.
On February 17, 2009, the Natural
Resources Defense Council (NRDC)
submitted a petition for reconsideration
of the December 2008 final rule as
provided for in CAA 307(d)(7)(B).1
On April 24, 2009, we responded to
the February 17, 2009, petition by letter
indicating that we were convening a
reconsideration proceeding for the
December 2008 rule on inclusion of
fugitive emissions challenged in the
petition and granting a 3-month
administrative stay of the rule contained
in the federal NSR program at 40 CFR
parts 51 and 52. The letter also
indicated that we would publish a
notice of proposed rulemaking ‘‘in the
near future’’ to address the specific
1 John Walke, NRDC, EPA–HQ–OAR–2004–0014–
0060.
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issues for which we were granting
reconsideration.2
The initial 3-month administrative
stay of the Fugitive Emissions Rule
became effective on September 30, 2009.
See 74 FR 50115. An interim final rule
extending the stay for an additional 3
months became effective on December
31, 2009. See 74 FR 65692. An
additional 18 month stay was finalized
on March 31, 2010, and ends on October
3, 2011. See 75 FR 16012. That stay was
put in place to allow sufficient time for
EPA to propose, take public comment
on, and issue a final action concerning
the inclusion of fugitive emissions in
the Federal NSR program.
III. This Action
A. Why is EPA staying, reinstating, or
revising, as appropriate, the regulatory
text in specific paragraphs affected by
the Fugitive Emissions Rule?
The initial stay of the Fugitive
Emissions Rule, put in place on
September 30, 2009, may have caused
confusion as to the scope of the stay. In
staying the Fugitive Emissions Rule,
EPA reinstated the NSR regulations as
they existed prior to the Fugitive
Emissions Rule. In particular, we stated:
‘‘To effectuate this stay of the December
19, 2008, rule, we are reinstating
previous provisions on a temporary
basis.’’ See 74 FR at 50115–16. In several
cases, however, paragraphs of the
affected regulations in 40 CFR 51.165,
40 CFR 51.166, 40 CFR 51 Appendix S,
and 40 CFR 52.21 appeared to be stayed
in their entirety rather than amended to
undo the changes made by the Fugitive
Emissions Rule as intended. The
subsequent extensions of the stay used
the same terms as the stay published on
September 30, 2009, and accordingly
did not correct the ambiguity created by
the original promulgation of the stay.
This action clarifies the regulations to
accurately reflect EPA’s intent to revert
back to the regulation text that existed
prior to the Fugitive Emissions Rule
amendments to the Federal NSR
regulations.
B. Why is EPA issuing an interim rule?
We are issuing an interim rule to
effectuate a stay of the Fugitive
Emissions Rule. This interim rule
supersedes the stay issued on March 31,
2010, and thereby corrects ambiguity
contained in that stay. EPA is using the
‘‘good cause’’ exemption under the
Administrative Procedure Act (APA) to
take the actions set forth in this interim
rule without prior notice and comment.
See 5 U.S.C. 553(b)(3)(B). Section 553(b)
2 Lisa Jackson, US EPA, EPA–HQ–OAR–2004–
0014–0062.
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of the APA generally requires that any
rule to which it applies be issued only
after the public has received notice of,
and had an opportunity to comment on,
the proposed rule. However, section
553(b)(3)(B) exempts from those
requirements any rule for which the
issuing agency for good cause finds that
providing prior notice and comment
would be impracticable, unnecessary, or
contrary to the public interest. Thus,
any rule for which EPA makes such a
finding is exempt from the notice and
comment requirements of section
553(b).
We believe that the circumstances
here provide good cause to take the
actions set forth in this interim rule
without prior notice and comment,
because providing prior notice and
comment would be unnecessary and
contrary to the public interest.
With this action, EPA is simply
staying the provisions of the Fugitive
Emissions Rule consistent with our
original intent, which we believe was
broadly understood. We believe that
soliciting public comment on this
interim rule prior to making it effective
would be contrary to the public interest
because it is in the public interest to
correct the ambiguity contained in the
current stay as expeditiously as possible
to avoid potential confusion regarding
the regulatory text. The NSR program is
a vital component of the Act’s regime
for protecting public health, and it is in
the public’s interest that the
requirements of the program be clear
and unambiguous.
EPA is also using the APA’s good
cause exception to make this interim
rule immediately effective. See 5 U.S.C.
553(d)(3). Section 553(d) of the APA
generally provides that rules may not
take effect earlier than 30 days after they
are published in the Federal Register.
However, section 553(d)(3) provides
that if the issuing agency has made a
finding of good cause and has published
its reasoning with the rule, the rule may
take effect earlier. EPA has determined
that good cause exists to stay, reinstate,
and revise, as appropriate, certain
paragraphs in 40 CFR parts 51 and 52
by interim rule without prior notice and
comment, because prior notice and
comment would be unnecessary and
contrary to the public interest for the
reasons stated above. Based on this
determination, EPA is making this
interim rule effective immediately.
Notwithstanding EPA’s ‘‘good cause’’
finding, we are providing a 30-day
public comment period for this interim
rule, and upon reviewing and
considering comments received, we will
issue a final rule either affirming the
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interim rule or affirming the interim
rule with revisions.
action is not subject to review under EO
12866.
C. What specific revisions are being
made?
B. Paperwork Reduction Act
We are issuing this interim rule to:
• Stay the following paragraphs: 40
CFR 51.165(a)(1)(v)(G) and
(a)(1)(vi)(C)(3), 40 CFR 51.166(b)(2)(v)
and (b)(3)(iii)(d), 40 CFR 51 Appendix S
II.A.5(vii), and 40 CFR 52.21 (b)(2)(v)
and (b)(3)(iii)(c);
• Reinstate the following paragraphs:
40 CFR 51.165(a)(4), 40 CFR
51.166(i)(1)(ii), 40 CFR 51 Appendix S
II.F, and 40 CFR 52.21(i)(1)(vii); and
• Revise the following paragraphs to
revert back to the regulatory text that
existed prior to the Fugitive Emissions
Rule amendments: 40 CFR
51.165(a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1),
(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C),
(a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii),
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR
51.166(a)(7)(iv)(b), (b)(3)(iii)(c), (b)(20),
(b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a),
(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv),
(r)(6)(iii), (r)(6)(iv), and (w)(4)(i)(d); 40
CFR 51 Appendix S II.A.6(iii), II.A.9,
II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a),
II.A.30(ii)(a), II.A.30(iii), II.A.30(iv),
IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d);
and 40 CFR 52.21(a)(2)(iv)(b),
(b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b),
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a),
(b)(48)(iii), (b)(48)(iv), (r)(6)(iii),
(r)(6)(iv), and (aa)(4)(i)(d).
The overall effect of this action is to
revert the treatment of fugitive
emissions in applicability
determinations to the approach that
applied prior to the Fugitive Emissions
Rule on an interim basis, while EPA
completes the reconsideration.
IV. Fugitive Emissions Rule
Reconsideration
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under Executive
Order (EO) 12866 (58 FR 51735, October
4, 1993), because it does not raise novel
legal or policy issues. Accordingly, this
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C. Regulatory Flexibility Act
This interim rule is not subject to the
Regulatory Flexibility Act (RFA), which
generally requires an agency to prepare
a regulatory flexibility analysis for any
rule that will have a significant
economic impact on a substantial
number of small entities. The RFA
applies only to rules subject to notice
and comment rulemaking requirements
under the APA or any other statute. This
rule is not subject to notice and
comment requirements under the APA
or any other statute because, although
the rule is subject to the APA, the
Agency has invoked the ‘‘good cause’’
exemption under 5 U.S.C. 553(b),
therefore it is not subject to the notice
and comment requirement.
D. Unfunded Mandates Reform Act
Following the public comment
period, EPA will issue a final rule either
affirming the interim rule or affirming
the interim rule with changes. The final
rule will be in effect until EPA
completes its reconsideration of the
Fugitive Emissions Rule. We intend to
propose and finalize a rule based on the
results of the reconsideration by October
4, 2012.
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This action does not impose any new
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b). This action
only corrects inadvertent errors in the
existing stay of the regulations at 40
CFR parts 51 and 52 concerning the
inclusion of fugitive emissions and
further stays the regulations until EPA
completes its reconsideration.
The Office of Management and Budget
(OMB) has previously approved the
information collection requirements
contained in the existing regulations (40
CFR parts 51 and 52) under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and has
assigned OMB control number 2060–
0003. The OMB control numbers for
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
This action contains no federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for state, local, or tribal
governments or the private sector. This
action only corrects inadvertent errors
in the existing stay of the regulations at
40 CFR parts 51 and 52 concerning the
inclusion of fugitive emissions and
further stays the regulations until EPA
completes its reconsideration.
Therefore, this action is not subject to
the requirements of sections 202 or 205
of UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
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E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in EO
13132. This action only corrects
inadvertent errors in the existing stay of
the regulations at 40 CFR parts 51 and
52 concerning the inclusion of fugitive
emissions and further stays the
regulations until EPA completes its
reconsideration. Thus, EO 13132 does
not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in EO 13175
(65 FR 67249, November 9, 2000). This
action will not impose any new
obligations or enforceable duties on
tribal governments. Thus, EO 13175
does not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it does not establish
an environmental standard intended to
mitigate health or safety risks.
WReier-Aviles on DSKGBLS3C1PROD with RULES
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to EO 13211
(66 FR 28355, May 22, 2001), because it
is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
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Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
Feb. 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this interim
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low income populations because it only
corrects inadvertent errors in the
existing stay of the regulations at 40
CFR parts 51 and 52 concerning the
inclusion of fugitive emissions and
further stays the regulations until EPA
completes its reconsideration.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801, et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that notice
and public procedure is impracticable,
unnecessary, or contrary to the public
interest. This determination must be
supported by a brief statement, 5 U.S.C.
808(2). As stated previously, EPA has
made such a good cause finding,
including the reasons therefore, and
established an effective date of March
30, 2011. EPA will submit a report
containing this rule and other required
information to the United States Senate,
the United States House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
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Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
VI. Statutory Authority
The statutory authority for this action
is provided by section 301(a) of the CAA
as amended (42 U.S.C. 7601(a)).
List of Subjects
40 CFR Part 51
Administrative practices and
procedures, Air pollution control,
Carbon monoxide, Fugitive emissions,
Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides,
Transportation, Volatile organic
compounds.
40 CFR Part 52
Administrative practices and
procedures, Air pollution control,
Carbon monoxide, Fugitive emissions,
Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides,
Transportation, Volatile organic
compounds.
Dated: March 10, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the
preamble, 40 CFR parts 51 and 52 are
amended as follows:
PART 51—[AMENDED]
1. The authority citation for part 51
continues to read as follows:
■
Authority: 23 U.S.C. 101; 42 U.S.C. 7401—
7671q.
2. Section 51.165 is amended as
follows:
■ a. The stay of § 51.165(a)(1)(v)(G),
(a)(1)(vi)(C)(3), (a)(1)(ix),
(a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4),
(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D),
(a)(2)(ii)(B), (a)(6)(iii), (a)(6)(iv), and
(f)(4)(i)(D), published on March 31, 2010
(75 FR 16012), is lifted.
■ b. Paragraphs (a)(1)(ix),
(a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1),
(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), and
(a)(1)(xxxv)(D) are revised.
■ c. Paragraph (a)(2)(ii)(B) is revised.
■ d. Temporary paragraph (a)(4), is
removed.
■ e. A new paragraph (a)(4), is added.
■ f. Paragraphs (a)(6)(iii) and (a)(6)(iv)
are revised.
■ g. Paragraph (f)(4)(i)(D) is revised.
■ h. Paragraphs (a)(1)(v)(G) and
(a)(1)(vi)(C)(3) are stayed.
■
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WReier-Aviles on DSKGBLS3C1PROD with RULES
§ 51.165
Permit requirements.
(a) * * *
(1) * * *
(ix) Fugitive emissions means those
emissions which could not reasonably
pass through a stack, chimney, vent or
other functionally equivalent opening.
*
*
*
*
*
(xxviii) * * *
(B) * * *
(2) Shall include fugitive emissions to
the extent quantifiable, and emissions
associated with startups, shutdowns,
and malfunctions; and
*
*
*
*
*
(4) In lieu of using the method set out
in paragraphs (a)(1)(xxviii)(B)(1)
through (3) of this section, may elect to
use the emissions unit’s potential to
emit, in tons per year, as defined under
paragraph (a)(1)(iii) of this section.
*
*
*
*
*
(xxxv) * * *
(A) * * *
(1) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
(B) * * *
(1) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
(C) For a new emissions unit, the
baseline actual emissions for purposes
of determining the emissions increase
that will result from the initial
construction and operation of such unit
shall equal zero; and thereafter, for all
other purposes, shall equal the unit’s
potential to emit.
(D) For a PAL for a major stationary
source, the baseline actual emissions
shall be calculated for existing electric
utility steam generating units in
accordance with the procedures
contained in paragraph (a)(1)(xxxv)(A)
of this section, for other existing
emissions units in accordance with the
procedures contained in paragraph
(a)(1)(xxxv)(B) of this section, and for a
new emissions unit in accordance with
the procedures contained in paragraph
(a)(1)(xxxv)(C) of this section.
*
*
*
*
*
(2) * * *
(ii) * * *
(B) The procedure for calculating
(before beginning actual construction)
whether a significant emissions increase
(i.e., the first step of the process) will
occur depends upon the type of
emissions units being modified,
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according to paragraphs (a)(2)(ii)(C)
through (F) of this section. The
procedure for calculating (before
beginning actual construction) whether
a significant net emissions increase will
occur at the major stationary source (i.e.,
the second step of the process) is
contained in the definition in paragraph
(a)(1)(vi) of this section. Regardless of
any such preconstruction projections, a
major modification results if the project
causes a significant emissions increase
and a significant net emissions increase.
*
*
*
*
*
(4) Each plan may provide that the
provisions of this paragraph do not
apply to a source or modification that
would be a major stationary source or
major modification only if fugitive
emissions, to the extent quantifiable, are
considered in calculating the potential
to emit of the stationary source or
modification and the source does not
belong to any of the following
categories:
(i) Coal cleaning plants (with thermal
dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction
plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable
of charging more than 250 tons of refuse
per day;
(ix) Hydrofluoric, sulfuric, or citric
acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing
plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace
process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production
plants;
(xx) Chemical process plants—The
term chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(xxi) Fossil-fuel boilers (or
combination thereof) totaling more than
250 million British thermal units per
hour heat input;
(xxii) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
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17553
(xxvi) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(xxvii) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act.
*
*
*
*
*
(6) * * *
(iii) The owner or operator shall
monitor the emissions of any regulated
NSR pollutant that could increase as a
result of the project and that is emitted
by any emissions units identified in
paragraph (a)(6)(i)(B) of this section; and
calculate and maintain a record of the
annual emissions, in tons per year on a
calendar year basis, for a period of 5
years following resumption of regular
operations after the change, or for a
period of 10 years following resumption
of regular operations after the change if
the project increases the design capacity
or potential to emit of that regulated
NSR pollutant at such emissions unit.
(iv) If the unit is an existing electric
utility steam generating unit, the owner
or operator shall submit a report to the
reviewing authority within 60 days after
the end of each year during which
records must be generated under
paragraph (a)(6)(iii) of this section
setting out the unit’s annual emissions
during the year that preceded
submission of the report.
*
*
*
*
*
(f) * * *
(4) * * *
(i) * * *
(D) The PAL shall include fugitive
emissions, to the extent quantifiable,
from all emissions units that emit or
have the potential to emit the PAL
pollutant at the major stationary source.
*
*
*
*
*
■ 3. Section 51.166 is amended as
follows:
■ a. The stay of § 51.166(a)(7)(iv)(b),
(b)(2)(v), (b)(3)(iii)(c), (b)(3)(iii)(d),
(b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d),
(b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii),
(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and
(w)(4)(i)(d), published on March 31,
2010 (75 FR 16012), is lifted.
■ b. Paragraph (a)(7)(iv)(b) is revised.
■ c. Paragraphs (b)(3)(iii)(c), (b)(20),
(b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a),
(b)(47)(ii)(a), (b)(47)(iii), and (b)(47)(iv)
are revised.
■ d. Temporary paragraph (i)(1)(ii) is
removed.
■ e. A new paragraph (i)(1)(ii) is added.
■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv)
are revised.
■ g. Paragraph (w)(4)(i)(d) is revised.
■ h. Paragraphs (b)(2)(v) and
(b)(3)(iii)(d) are stayed.
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§ 51.166 Prevention of significant
deterioration of air quality.
(a) * * *
(7) * * *
(iv) * * *
(b) The procedure for calculating
(before beginning actual construction)
whether a significant emissions increase
(i.e., the first step of the process) will
occur depends upon the type of
emissions units being modified,
according to paragraphs (a)(7)(iv)(c)
through (f) of this section. The
procedure for calculating (before
beginning actual construction) whether
a significant net emissions increase will
occur at the major stationary source (i.e.,
the second step of the process) is
contained in the definition in paragraph
(b)(3) of this section. Regardless of any
such preconstruction projections, a
major modification results if the project
causes a significant emissions increase
and a significant net emissions increase.
*
*
*
*
*
(b) * * *
(3) * * *
(iii) * * *
(c) The increase or decrease in
emissions did not occur at a Clean Unit,
except as provided in paragraphs (t)(8)
and (u)(10) of this section.
*
*
*
*
*
(20) Fugitive emissions means those
emissions which could not reasonably
pass through a stack, chimney, vent, or
other functionally equivalent opening.
*
*
*
*
*
(40) * * *
(ii) * * *
(b) Shall include fugitive emissions to
the extent quantifiable, and emissions
associated with startups, shutdowns,
and malfunctions; and
*
*
*
*
*
(d) In lieu of using the method set out
in paragraphs (b)(40)(ii)(a) through (c) of
this section, may elect to use the
emissions unit’s potential to emit, in
tons per year, as defined under
paragraph (b)(4) of this section.
*
*
*
*
*
(47) * * *
(i) * * *
(a) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
(ii) * * *
(a) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
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(iii) For a new emissions unit, the
baseline actual emissions for purposes
of determining the emissions increase
that will result from the initial
construction and operation of such unit
shall equal zero; and thereafter, for all
other purposes, shall equal the unit’s
potential to emit.
(iv) For a PAL for a stationary source,
the baseline actual emissions shall be
calculated for existing electric utility
steam generating units in accordance
with the procedures contained in
paragraph (b)(47)(i) of this section, for
other existing emissions units in
accordance with the procedures
contained in paragraph (b)(47)(ii) of this
section, and for a new emissions unit in
accordance with the procedures
contained in paragraph (b)(47)(iii) of
this section.
*
*
*
*
*
(i) * * *
(1) * * *
(ii) The source or modification would
be a major stationary source or major
modification only if fugitive emissions,
to the extent quantifiable, are
considered in calculating the potential
to emit of the stationary source or
modification and such source does not
belong to any of the following
categories:
(a) Coal cleaning plants (with thermal
dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction
plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of
charging more than 250 tons of refuse
per day;
(i) Hydrofluoric, sulfuric, or nitric
acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace
process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production
plants;
(t) Chemical process plants—The term
chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(u) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat
input;
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(v) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(aa) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act; or
*
*
*
*
*
(r) * * *
(6) * * *
(iii) The owner or operator shall
monitor the emissions of any regulated
NSR pollutant that could increase as a
result of the project and that is emitted
by any emissions unit identified in
paragraph (r)(6)(i)(b) of this section; and
calculate and maintain a record of the
annual emissions, in tons per year on a
calendar year basis, for a period of 5
years following resumption of regular
operations after the change, or for a
period of 10 years following resumption
of regular operations after the change if
the project increases the design capacity
or potential to emit of that regulated
NSR pollutant at such emissions unit.
(iv) If the unit is an existing electric
utility steam generating unit, the owner
or operator shall submit a report to the
reviewing authority within 60 days after
the end of each year during which
records must be generated under
paragraph (r)(6)(iii) of this section
setting out the unit’s annual emissions
during the calendar year that preceded
submission of the report.
*
*
*
*
*
(w) * * *
(4) * * *
(i) * * *
(d) The PAL shall include fugitive
emissions, to the extent quantifiable,
from all emissions units that emit or
have the potential to emit the PAL
pollutant at the major stationary source.
*
*
*
*
*
■ 4. Appendix S. to Part 51 is amended
as follows:
■ a. The stay of appendix S, paragraphs
II.A.5(vii), II.A.6(iii), II.A.9,
II.A.24(ii)(b), II.A.24(ii)(d), II.A. 30(i)(a),
II.A.30(ii)(a), II.A.30(iii), II.A.30(iv),
IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d)
published on March 31, 2010 (75 FR
16012) is lifted.
■ b. Paragraphs II.A.6(iii), II.A.9,
II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a),
II.A.30(ii)(a), II.A.30(iii), and II.A.30(iv)
are revised.
■ c. Temporary paragraph II.F is
removed.
■ d. A new paragraph II.F is added.
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e. Paragraphs IV.I.1(ii), IV.J.3, IV.J.4,
and IV.K.4(i)(d) are revised.
■ f. Paragraph II.A.5(vii) is stayed.
■
Appendix S to Part 51—Emission Offset
Interpretative Ruling
*
*
*
*
*
II. * * *
A. * * *
6. * * *
(iii) An increase or decrease in actual
emissions is creditable only if the reviewing
authority has not relied on it in issuing a
permit for the source under this Ruling,
which permit is in effect when the increase
in actual emissions from the particular
change occurs.
*
*
*
*
*
9. Fugitive emissions means those
emissions which could not reasonably pass
through a stack, chimney, vent, or other
functionally equivalent opening.
*
*
*
*
*
24. * * *
(ii) * * *
(b) Shall include fugitive emissions to the
extent quantifiable, and emissions associated
with startups, shutdowns, and malfunctions;
and
*
*
*
*
*
(d) In lieu of using the method set out in
paragraphs II.A.24(ii)(a) through (c) of this
Ruling, may elect to use the emissions unit’s
potential to emit, in tons per year, as defined
under paragraph II.A.3 of this Ruling.
*
*
*
*
*
30. * * *
(i) * * *
(a) The average rate shall include fugitive
emissions to the extent quantifiable, and
emissions associated with startups,
shutdowns, and malfunctions.
*
*
*
*
*
(ii) * * *
(a) The average rate shall include fugitive
emissions to the extent quantifiable, and
emissions associated with startups,
shutdowns, and malfunctions.
WReier-Aviles on DSKGBLS3C1PROD with RULES
*
*
*
*
*
(iii) For a new emissions unit, the baseline
actual emissions for purposes of determining
the emissions increase that will result from
the initial construction and operation of such
unit shall equal zero; and thereafter, for all
other purposes, shall equal the unit’s
potential to emit.
(iv) For a PAL for a major stationary
source, the baseline actual emissions shall be
calculated for existing electric utility steam
generating units in accordance with the
procedures contained in paragraph II.A.30(i)
of this Ruling, for other existing emissions
units in accordance with the procedures
contained in paragraph II.A.30(ii) of this
Ruling, and for a new emissions unit in
accordance with the procedures contained in
paragraph II.A.30(iii) of this Ruling.
*
*
*
*
*
F. Fugitive emission sources. Section IV.A.
of this Ruling shall not apply to a source or
modification that would be a major stationary
source or major modification only if fugitive
emissions, to the extent quantifiable, are
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considered in calculating the potential to
emit of the stationary source or modification
and such source does not belong to any of the
following categories:
(1) Coal cleaning plants (with thermal
dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction
plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of
charging more than 250 tons of refuse per
day;
(9) Hydrofluoric, sulfuric, or nitric acid
plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process);
(16) Primary lead smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants—The term
chemical processing plant shall not include
ethanol production facilities that produce
ethanol by natural fermentation included in
NAICS codes 325193 or 312140;
(21) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat input;
(22) Petroleum storage and transfer units
with a total storage capacity exceeding
300,000 barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants
of more than 250 million British thermal
units per hour heat input;
(27) Any other stationary source category
which, as of August 7, 1980, is being
regulated under section 111 or 112 of the Act.
*
*
*
*
*
IV. * * *
I. * * *
1. * * *
(ii) The procedure for calculating (before
beginning actual construction) whether a
significant emissions increase (i.e., the first
step of the process) will occur depends upon
the type of emissions units being modified,
according to paragraphs IV.I.1(iii) through (v)
of this Ruling. The procedure for calculating
(before beginning actual construction)
whether a significant net emissions increase
will occur at the major stationary source (i.e.,
the second step of the process) is contained
in the definition in paragraph II.A.6 of this
Ruling. Regardless of any such
preconstruction projections, a major
modification results if the project causes a
significant emissions increase and a
significant net emissions increase.
*
*
*
*
*
J. * * *
3. The owner or operator shall monitor the
emissions of any regulated NSR pollutant
that could increase as a result of the project
and that is emitted by any emissions units
identified in paragraph IV.J.1(ii) of this
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17555
Ruling; and calculate and maintain a record
of the annual emissions, in tons per year on
a calendar year basis, for a period of 5 years
following resumption of regular operations
after the change, or for a period of 10 years
following resumption of regular operations
after the change if the project increases the
design capacity or potential to emit of that
regulated NSR pollutant at such emissions
unit.
4. If the unit is an existing electric utility
steam generating unit, the owner or operator
shall submit a report to the reviewing
authority within 60 days after the end of each
year, during which records must be generated
under paragraph IV.J.3 of this Ruling setting
out the unit’s annual emissions during the
year that preceded submission of the report.
*
*
*
*
*
K. * * *
4. * * *
(i) * * *
(d) The PAL shall include fugitive
emissions, to the extent quantifiable, from all
emissions units that emit or have the
potential to emit the PAL pollutant at the
major stationary source.
*
*
*
*
*
PART 52—[AMENDED]
5. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
6. Section 52.21 is amended as
follows:
■ a. The stay of § 52.21 (a)(2)(iv)(b),
(b)(2)(v), (b)(3)(iii)(b), (b)(3)(iii)(c),
(b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d),
(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii),
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and
(aa)(4)(i)(d), published on March 31,
2010 (75 FR 16012), is lifted.
■ b. Paragraph (a)(2)(iv)(b) is revised.
■ c. Paragraphs (b)(3)(iii)(b), (b)(20),
(b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a),
(b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv)
are revised.
■ d. Temporary paragraph (i)(1)(vii) is
removed.
■ e. A new paragraph (i)(1)(vii) is added.
■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv)
are revised.
■ g. Paragraph (aa)(4)(i)(d) is revised.
■ h. Paragraphs (b)(2)(v) and (b)(3)(iii)(c)
are stayed.
■
§ 52.21 Prevention of significant
deterioration of air quality.
(a) * * *
(2) * * *
(iv) * * *
(b) The procedure for calculating
(before beginning actual construction)
whether a significant emissions increase
(i.e., the first step of the process) will
occur depends upon the type of
emissions units being modified,
according to paragraphs (a)(2)(iv)(c)
through (f) of this section. The
procedure for calculating (before
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17556
Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations
beginning actual construction) whether
a significant net emissions increase will
occur at the major stationary source (i.e.,
the second step of the process) is
contained in the definition in paragraph
(b)(3) of this section. Regardless of any
such preconstruction projections, a
major modification results if the project
causes a significant emissions increase
and a significant net emissions increase.
*
*
*
*
*
(b) * * *
(3) * * *
(iii) * * *
(b) The increase or decrease in
emissions did not occur at a Clean Unit
except as provided in paragraphs (x)(8)
and (y)(10) of this section.
*
*
*
*
*
(20) Fugitive emissions means those
emissions which could not reasonably
pass through a stack, chimney, vent, or
other functionally equivalent opening.
*
*
*
*
*
(41) * * *
(ii) * * *
(b) Shall include fugitive emissions to
the extent quantifiable, and emissions
associated with startups, shutdowns,
and malfunctions; and
*
*
*
*
*
(d) In lieu of using the method set out
in paragraphs (a)(41)(ii)(a) through (c) of
this section, may elect to use the
emissions unit’s potential to emit, in
tons per year, as defined under
paragraph (b)(4) of this section.
*
*
*
*
*
(48) * * *
(i) * * *
(a) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
(ii) * * *
(a) The average rate shall include
fugitive emissions to the extent
quantifiable, and emissions associated
with startups, shutdowns, and
malfunctions.
*
*
*
*
*
(iii) For a new emissions unit, the
baseline actual emissions for purposes
of determining the emissions increase
that will result from the initial
construction and operation of such unit
shall equal zero; and thereafter, for all
other purposes, shall equal the unit’s
potential to emit.
(iv) For a PAL for a stationary source,
the baseline actual emissions shall be
calculated for existing electric utility
steam generating units in accordance
with the procedures contained in
paragraph (b)(48)(i) of this section, for
VerDate Mar<15>2010
12:55 Mar 29, 2011
Jkt 223001
other existing emissions units in
accordance with the procedures
contained in paragraph (b)(48)(ii) of this
section, and for a new emissions unit in
accordance with the procedures
contained in paragraph (b)(48)(iii) of
this section.
*
*
*
*
*
(i) * * *
(1) * * *
(vii) The source or modification
would be a major stationary source or
major modification only if fugitive
emissions, to the extent quantifiable, are
considered in calculating the potential
to emit of the stationary source or
modification and the source does not
belong to any of the following
categories:
(a) Coal cleaning plants (with thermal
dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction
plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of
charging more than 250 tons of refuse
per day;
(i) Hydrofluoric, sulfuric, or nitric
acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace
process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production
plants;
(t) Chemical process plants—The term
chemical processing plant shall not
include ethanol production facilities
that produce ethanol by natural
fermentation included in NAICS codes
325193 or 312140;
(u) Fossil-fuel boilers (or combination
thereof) totaling more than 250 million
British thermal units per hour heat
input;
(v) Petroleum storage and transfer
units with a total storage capacity
exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric
plants of more than 250 million British
thermal units per hour heat input;
(aa) Any other stationary source
category which, as of August 7, 1980, is
being regulated under section 111 or
112 of the Act; or
*
*
*
*
*
PO 00000
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Fmt 4700
Sfmt 4700
(r) * * *
(6) * * *
(iii) The owner or operator shall
monitor the emissions of any regulated
NSR pollutant that could increase as a
result of the project and that is emitted
by any emissions unit identified in
paragraph (r)(6)(i)(b) of this section; and
calculate and maintain a record of the
annual emissions, in tons per year on a
calendar year basis, for a period of 5
years following resumption of regular
operations after the change, or for a
period of 10 years following resumption
of regular operations after the change if
the project increases the design capacity
or potential to emit that regulated NSR
pollutant at such emissions unit.
(iv) If the unit is an existing electric
utility steam generating unit, the owner
or operator shall submit a report to the
Administrator within 60 days after the
end of each year during which records
must be generated under paragraph
(r)(6)(iii) of this section setting out the
unit’s annual emissions during the
calendar year that preceded submission
of the report.
*
*
*
*
*
(aa) * * *
(4) * * *
(i) * * *
(d) The PAL shall include fugitive
emissions, to the extent quantifiable,
from all emissions units that emit or
have the potential to emit the PAL
pollutant at the major stationary source.
*
*
*
*
*
[FR Doc. 2011–6670 Filed 3–29–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2010–0097; FRL–8867–7]
Sodium Ferric
Ethylenediaminetetraacetate;
Exemption From the Requirement of a
Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes an
exemption from the requirement of a
tolerance for residues of sodium ferric
ethylenediaminetetraacetate (EDTA) in
or on all food commodities when
applied as a molluscicide and used in
accordance with good agricultural
practices. W. Neudorff GmbH KG
submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act
(FFDCA), requesting an exemption from
SUMMARY:
E:\FR\FM\30MRR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Rules and Regulations]
[Pages 17548-17556]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6670]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2004-0014: FRL-9280-8]
RIN 2060-AQ73
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Reconsideration of Inclusion of Fugitive
Emissions; Interim Rule; Stay and Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim rule; stay and revisions.
-----------------------------------------------------------------------
SUMMARY: EPA is taking an interim action to effectuate and extend a
stay of the final rule entitled ``Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NSR):
Reconsideration of Inclusion of Fugitive Emissions'' (``Fugitive
Emissions Rule'') published in the Federal Register on December 19,
2008. The Fugitive Emissions Rule under the Federal NSR program
required that fugitive emissions be included in determining whether a
physical or operational change results in a major modification only for
sources in designated industries. EPA issued a stay of the Fugitive
Emissions Rule on March 31, 2010, that was effective for 18 months
through October 3, 2011. This action supersedes the stay and thereby
corrects potential confusion caused by that stay. To effectuate a stay
of the Fugitive Emissions Rule, this action clarifies the stay and the
revisions of specific paragraphs in the NSR regulations that were
affected by the Fugitive Emissions Rule. This action also extends the
stay until EPA completes its reconsideration of the Fugitive Emissions
Rule.
DATES: Effective date: This interim rule is effective March 30, 2011.
The administrative stay of provisions in 40 CFR 51.165, 51.166,
Appendix S to part 51, and 40 CFR 52.21 published on March 31, 2010 (75
FR 16012) is lifted; and
The following Code of Federal Regulations sections are stayed
indefinitely: 40 CFR 51.165(a)(1)(v)(G) and (a)(1)(vi)(C)(3);
51.166(b)(2)(v) and (b)(3)(iii)(d); Appendix S to Part 51, Paragraph
II.A.5(vii); and 52.21(b)(2)(v) and (b)(3)(iii)(c). The EPA will
publish a document in the Federal Register lifting this stay.
Comment date: Comments must be received on or before April 29,
2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
[[Page 17549]]
OAR-2004-0014, by one of the following methods:
https://www.regulations.gov. Follow the online instructions
for submitting comments.
E-mail: a-and-r-docket@epa.gov.
Fax: (202) 566-1741.
Mail: Air and Radiation Docket, Environmental Protection
Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC
20460.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to the applicable docket. EPA's
policy is that all comments received will be included in the public
docket without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through https://www.regulations.gov or e-
mail. The https://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through https://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Docket Center, Public
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1742, and the
telephone number for the Air Docket is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Mr. Peter Keller, Air Quality Policy
Division, (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711; telephone number (919) 541-5339; fax number
(919) 541-5509; or e-mail address: keller.peter@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this action include sources in all
industry groups. The majority of sources potentially affected are
expected to be in the following groups.
----------------------------------------------------------------------------------------------------------------
Industry group SIC \a\ NAICS \b\
----------------------------------------------------------------------------------------------------------------
Electric Services.................. 491 221111, 221112, 221113, 221119, 221121, 221122
Petroleum Refining................. 291 324110
Industrial Inorganic Chemicals..... 281 325181, 325120, 325131, 325182, 211112, 325998,
331311, 325188
Industrial Organic Chemicals....... 286 325110, 325132, 325192, 325188, 325193, 325120,
325199
Miscellaneous Chemical Products.... 289 325520, 325920, 325910, 325182, 325510
Natural Gas Liquids................ 132 211112
Natural Gas Transport.............. 492 486210, 221210
Pulp and Paper Mills............... 261 322110, 322121, 322122, 322130
Paper Mills........................ 262 322121, 322122
Automobile Manufacturing........... 371 336111, 336112, 336211, 336992, 336322, 336312,
336330, 336340, 336350, 336399, 336212, 336213
Pharmaceuticals.................... 283 325411, 325412, 325413, 325414
Mining............................. 211, 212, 213 21
Agriculture, Fishing and Hunting... 111, 112, 113, 115 11
----------------------------------------------------------------------------------------------------------------
\a\ Standard Industrial Classification
\b\ North American Industry Classification System.
Entities potentially affected by this action also include state,
local, and tribal governments.
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit information containing CBI to EPA
through https://www.regulations.gov or e-mail. Send or deliver
information identified as CBI only to the following address: Mr.
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA,
Office of Air Quality Planning and Standards, Research Triangle Park,
North Carolina 27711, Attention: Docket ID EPA-HQ-OAR-2004-0014.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark
the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is
[[Page 17550]]
claimed as CBI. In addition to one complete version of the comment that
includes information claimed as CBI, a copy of the comment that does
not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
2. Tips for Preparing Your Comments. When submitting your comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this interim rule will also be available on the World Wide Web.
Following signature by the EPA Administrator, a copy of this interim
rule will be posted in the regulations and standards section of our NSR
home page located at https://www.epa.gov/nsr.
D. How is this preamble organized?
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
C. Where can I get a copy of this document and other related
information?
D. How is this preamble organized?
II. Background Information
III. This Action
A. Why is EPA staying, reinstating, or revising, as appropriate,
the regulatory text in specific paragraphs affected by the Fugitive
Emissions Rule?
B. Why is EPA issuing an interim rule?
C. What specific revisions are being made?
IV. Fugitive Emissions Rule Reconsideration
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
VI. Statutory Authority
II. Background Information
On December 19, 2008, EPA (``we'') issued a final rule revising the
requirements of the major NSR programs regarding the treatment of
fugitive emissions (``Fugitive Emissions Rule'') 73 FR 77882. The final
rule required fugitive emissions to be included in determining whether
a physical or operational change results in a major modification only
for sources in industries that have been designated through rulemaking
under section 302(j) of the Clean Air Act (Act or CAA). Previously, EPA
rules required that fugitive emissions be included in major
modification applicability determinations for all source categories.
The final rule amended all portions of the major NSR program
regulations: Permit requirements, the PSD program, and the emission
offset interpretive ruling.
On February 17, 2009, the Natural Resources Defense Council (NRDC)
submitted a petition for reconsideration of the December 2008 final
rule as provided for in CAA 307(d)(7)(B).\1\
---------------------------------------------------------------------------
\1\ John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.
---------------------------------------------------------------------------
On April 24, 2009, we responded to the February 17, 2009, petition
by letter indicating that we were convening a reconsideration
proceeding for the December 2008 rule on inclusion of fugitive
emissions challenged in the petition and granting a 3-month
administrative stay of the rule contained in the federal NSR program at
40 CFR parts 51 and 52. The letter also indicated that we would publish
a notice of proposed rulemaking ``in the near future'' to address the
specific issues for which we were granting reconsideration.\2\
---------------------------------------------------------------------------
\2\ Lisa Jackson, US EPA, EPA-HQ-OAR-2004-0014-0062.
---------------------------------------------------------------------------
The initial 3-month administrative stay of the Fugitive Emissions
Rule became effective on September 30, 2009. See 74 FR 50115. An
interim final rule extending the stay for an additional 3 months became
effective on December 31, 2009. See 74 FR 65692. An additional 18 month
stay was finalized on March 31, 2010, and ends on October 3, 2011. See
75 FR 16012. That stay was put in place to allow sufficient time for
EPA to propose, take public comment on, and issue a final action
concerning the inclusion of fugitive emissions in the Federal NSR
program.
III. This Action
A. Why is EPA staying, reinstating, or revising, as appropriate, the
regulatory text in specific paragraphs affected by the Fugitive
Emissions Rule?
The initial stay of the Fugitive Emissions Rule, put in place on
September 30, 2009, may have caused confusion as to the scope of the
stay. In staying the Fugitive Emissions Rule, EPA reinstated the NSR
regulations as they existed prior to the Fugitive Emissions Rule. In
particular, we stated: ``To effectuate this stay of the December 19,
2008, rule, we are reinstating previous provisions on a temporary
basis.'' See 74 FR at 50115-16. In several cases, however, paragraphs
of the affected regulations in 40 CFR 51.165, 40 CFR 51.166, 40 CFR 51
Appendix S, and 40 CFR 52.21 appeared to be stayed in their entirety
rather than amended to undo the changes made by the Fugitive Emissions
Rule as intended. The subsequent extensions of the stay used the same
terms as the stay published on September 30, 2009, and accordingly did
not correct the ambiguity created by the original promulgation of the
stay. This action clarifies the regulations to accurately reflect EPA's
intent to revert back to the regulation text that existed prior to the
Fugitive Emissions Rule amendments to the Federal NSR regulations.
B. Why is EPA issuing an interim rule?
We are issuing an interim rule to effectuate a stay of the Fugitive
Emissions Rule. This interim rule supersedes the stay issued on March
31, 2010, and thereby corrects ambiguity contained in that stay. EPA is
using the ``good cause'' exemption under the Administrative Procedure
Act (APA) to take the actions set forth in this interim rule without
prior notice and comment. See 5 U.S.C. 553(b)(3)(B). Section 553(b)
[[Page 17551]]
of the APA generally requires that any rule to which it applies be
issued only after the public has received notice of, and had an
opportunity to comment on, the proposed rule. However, section
553(b)(3)(B) exempts from those requirements any rule for which the
issuing agency for good cause finds that providing prior notice and
comment would be impracticable, unnecessary, or contrary to the public
interest. Thus, any rule for which EPA makes such a finding is exempt
from the notice and comment requirements of section 553(b).
We believe that the circumstances here provide good cause to take
the actions set forth in this interim rule without prior notice and
comment, because providing prior notice and comment would be
unnecessary and contrary to the public interest.
With this action, EPA is simply staying the provisions of the
Fugitive Emissions Rule consistent with our original intent, which we
believe was broadly understood. We believe that soliciting public
comment on this interim rule prior to making it effective would be
contrary to the public interest because it is in the public interest to
correct the ambiguity contained in the current stay as expeditiously as
possible to avoid potential confusion regarding the regulatory text.
The NSR program is a vital component of the Act's regime for protecting
public health, and it is in the public's interest that the requirements
of the program be clear and unambiguous.
EPA is also using the APA's good cause exception to make this
interim rule immediately effective. See 5 U.S.C. 553(d)(3). Section
553(d) of the APA generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
However, section 553(d)(3) provides that if the issuing agency has made
a finding of good cause and has published its reasoning with the rule,
the rule may take effect earlier. EPA has determined that good cause
exists to stay, reinstate, and revise, as appropriate, certain
paragraphs in 40 CFR parts 51 and 52 by interim rule without prior
notice and comment, because prior notice and comment would be
unnecessary and contrary to the public interest for the reasons stated
above. Based on this determination, EPA is making this interim rule
effective immediately.
Notwithstanding EPA's ``good cause'' finding, we are providing a
30-day public comment period for this interim rule, and upon reviewing
and considering comments received, we will issue a final rule either
affirming the interim rule or affirming the interim rule with
revisions.
C. What specific revisions are being made?
We are issuing this interim rule to:
Stay the following paragraphs: 40 CFR 51.165(a)(1)(v)(G)
and (a)(1)(vi)(C)(3), 40 CFR 51.166(b)(2)(v) and (b)(3)(iii)(d), 40 CFR
51 Appendix S II.A.5(vii), and 40 CFR 52.21 (b)(2)(v) and
(b)(3)(iii)(c);
Reinstate the following paragraphs: 40 CFR 51.165(a)(4),
40 CFR 51.166(i)(1)(ii), 40 CFR 51 Appendix S II.F, and 40 CFR
52.21(i)(1)(vii); and
Revise the following paragraphs to revert back to the
regulatory text that existed prior to the Fugitive Emissions Rule
amendments: 40 CFR 51.165(a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii),
(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 51.166(a)(7)(iv)(b),
(b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a),
(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii), (r)(6)(iv), and
(w)(4)(i)(d); 40 CFR 51 Appendix S II.A.6(iii), II.A.9, II.A.24(ii)(b),
II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii),
II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d); and 40 CFR
52.21(a)(2)(iv)(b), (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b),
(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii),
(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and (aa)(4)(i)(d).
The overall effect of this action is to revert the treatment of
fugitive emissions in applicability determinations to the approach that
applied prior to the Fugitive Emissions Rule on an interim basis, while
EPA completes the reconsideration.
IV. Fugitive Emissions Rule Reconsideration
Following the public comment period, EPA will issue a final rule
either affirming the interim rule or affirming the interim rule with
changes. The final rule will be in effect until EPA completes its
reconsideration of the Fugitive Emissions Rule. We intend to propose
and finalize a rule based on the results of the reconsideration by
October 4, 2012.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under
Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), because it
does not raise novel legal or policy issues. Accordingly, this action
is not subject to review under EO 12866.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Burden is defined at 5 CFR 1320.3(b). This action only corrects
inadvertent errors in the existing stay of the regulations at 40 CFR
parts 51 and 52 concerning the inclusion of fugitive emissions and
further stays the regulations until EPA completes its reconsideration.
The Office of Management and Budget (OMB) has previously approved
the information collection requirements contained in the existing
regulations (40 CFR parts 51 and 52) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003. The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
This interim rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the APA or any other statute. This rule is not subject to notice and
comment requirements under the APA or any other statute because,
although the rule is subject to the APA, the Agency has invoked the
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not
subject to the notice and comment requirement.
D. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. This action only corrects inadvertent errors in the existing
stay of the regulations at 40 CFR parts 51 and 52 concerning the
inclusion of fugitive emissions and further stays the regulations until
EPA completes its reconsideration. Therefore, this action is not
subject to the requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
[[Page 17552]]
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in EO 13132. This action only corrects inadvertent errors in
the existing stay of the regulations at 40 CFR parts 51 and 52
concerning the inclusion of fugitive emissions and further stays the
regulations until EPA completes its reconsideration. Thus, EO 13132
does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in EO
13175 (65 FR 67249, November 9, 2000). This action will not impose any
new obligations or enforceable duties on tribal governments. Thus, EO
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to EO 13211 (66 FR 28355, May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this interim rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low income populations because it only corrects
inadvertent errors in the existing stay of the regulations at 40 CFR
parts 51 and 52 concerning the inclusion of fugitive emissions and
further stays the regulations until EPA completes its reconsideration.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary, or contrary to the public interest. This
determination must be supported by a brief statement, 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and established an effective date of March 30,
2011. EPA will submit a report containing this rule and other required
information to the United States Senate, the United States House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
VI. Statutory Authority
The statutory authority for this action is provided by section
301(a) of the CAA as amended (42 U.S.C. 7601(a)).
List of Subjects
40 CFR Part 51
Administrative practices and procedures, Air pollution control,
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.
40 CFR Part 52
Administrative practices and procedures, Air pollution control,
Carbon monoxide, Fugitive emissions, Intergovernmental relation, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.
Dated: March 10, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, 40 CFR parts 51 and 52 are
amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401--7671q.
0
2. Section 51.165 is amended as follows:
0
a. The stay of Sec. 51.165(a)(1)(v)(G), (a)(1)(vi)(C)(3), (a)(1)(ix),
(a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1),
(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), (a)(1)(xxxv)(D), (a)(2)(ii)(B),
(a)(6)(iii), (a)(6)(iv), and (f)(4)(i)(D), published on March 31, 2010
(75 FR 16012), is lifted.
0
b. Paragraphs (a)(1)(ix), (a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C), and (a)(1)(xxxv)(D) are revised.
0
c. Paragraph (a)(2)(ii)(B) is revised.
0
d. Temporary paragraph (a)(4), is removed.
0
e. A new paragraph (a)(4), is added.
0
f. Paragraphs (a)(6)(iii) and (a)(6)(iv) are revised.
0
g. Paragraph (f)(4)(i)(D) is revised.
0
h. Paragraphs (a)(1)(v)(G) and (a)(1)(vi)(C)(3) are stayed.
[[Page 17553]]
Sec. 51.165 Permit requirements.
(a) * * *
(1) * * *
(ix) Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent or other functionally
equivalent opening.
* * * * *
(xxviii) * * *
(B) * * *
(2) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
* * * * *
(4) In lieu of using the method set out in paragraphs
(a)(1)(xxviii)(B)(1) through (3) of this section, may elect to use the
emissions unit's potential to emit, in tons per year, as defined under
paragraph (a)(1)(iii) of this section.
* * * * *
(xxxv) * * *
(A) * * *
(1) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(B) * * *
(1) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(C) For a new emissions unit, the baseline actual emissions for
purposes of determining the emissions increase that will result from
the initial construction and operation of such unit shall equal zero;
and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(D) For a PAL for a major stationary source, the baseline actual
emissions shall be calculated for existing electric utility steam
generating units in accordance with the procedures contained in
paragraph (a)(1)(xxxv)(A) of this section, for other existing emissions
units in accordance with the procedures contained in paragraph
(a)(1)(xxxv)(B) of this section, and for a new emissions unit in
accordance with the procedures contained in paragraph (a)(1)(xxxv)(C)
of this section.
* * * * *
(2) * * *
(ii) * * *
(B) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the first
step of the process) will occur depends upon the type of emissions
units being modified, according to paragraphs (a)(2)(ii)(C) through (F)
of this section. The procedure for calculating (before beginning actual
construction) whether a significant net emissions increase will occur
at the major stationary source (i.e., the second step of the process)
is contained in the definition in paragraph (a)(1)(vi) of this section.
Regardless of any such preconstruction projections, a major
modification results if the project causes a significant emissions
increase and a significant net emissions increase.
* * * * *
(4) Each plan may provide that the provisions of this paragraph do
not apply to a source or modification that would be a major stationary
source or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of
the stationary source or modification and the source does not belong to
any of the following categories:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or citric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(xxvii) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
(6) * * *
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions units identified in paragraph
(a)(6)(i)(B) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit of that regulated NSR pollutant at such
emissions unit.
(iv) If the unit is an existing electric utility steam generating
unit, the owner or operator shall submit a report to the reviewing
authority within 60 days after the end of each year during which
records must be generated under paragraph (a)(6)(iii) of this section
setting out the unit's annual emissions during the year that preceded
submission of the report.
* * * * *
(f) * * *
(4) * * *
(i) * * *
(D) The PAL shall include fugitive emissions, to the extent
quantifiable, from all emissions units that emit or have the potential
to emit the PAL pollutant at the major stationary source.
* * * * *
0
3. Section 51.166 is amended as follows:
0
a. The stay of Sec. 51.166(a)(7)(iv)(b), (b)(2)(v), (b)(3)(iii)(c),
(b)(3)(iii)(d), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a),
(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), (r)(6)(iii) and (r)(6)(iv),
and (w)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted.
0
b. Paragraph (a)(7)(iv)(b) is revised.
0
c. Paragraphs (b)(3)(iii)(c), (b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d),
(b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), and (b)(47)(iv) are
revised.
0
d. Temporary paragraph (i)(1)(ii) is removed.
0
e. A new paragraph (i)(1)(ii) is added.
0
f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised.
0
g. Paragraph (w)(4)(i)(d) is revised.
0
h. Paragraphs (b)(2)(v) and (b)(3)(iii)(d) are stayed.
[[Page 17554]]
Sec. 51.166 Prevention of significant deterioration of air quality.
(a) * * *
(7) * * *
(iv) * * *
(b) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the first
step of the process) will occur depends upon the type of emissions
units being modified, according to paragraphs (a)(7)(iv)(c) through (f)
of this section. The procedure for calculating (before beginning actual
construction) whether a significant net emissions increase will occur
at the major stationary source (i.e., the second step of the process)
is contained in the definition in paragraph (b)(3) of this section.
Regardless of any such preconstruction projections, a major
modification results if the project causes a significant emissions
increase and a significant net emissions increase.
* * * * *
(b) * * *
(3) * * *
(iii) * * *
(c) The increase or decrease in emissions did not occur at a Clean
Unit, except as provided in paragraphs (t)(8) and (u)(10) of this
section.
* * * * *
(20) Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent, or other functionally
equivalent opening.
* * * * *
(40) * * *
(ii) * * *
(b) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
* * * * *
(d) In lieu of using the method set out in paragraphs
(b)(40)(ii)(a) through (c) of this section, may elect to use the
emissions unit's potential to emit, in tons per year, as defined under
paragraph (b)(4) of this section.
* * * * *
(47) * * *
(i) * * *
(a) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(ii) * * *
(a) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(iii) For a new emissions unit, the baseline actual emissions for
purposes of determining the emissions increase that will result from
the initial construction and operation of such unit shall equal zero;
and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(iv) For a PAL for a stationary source, the baseline actual
emissions shall be calculated for existing electric utility steam
generating units in accordance with the procedures contained in
paragraph (b)(47)(i) of this section, for other existing emissions
units in accordance with the procedures contained in paragraph
(b)(47)(ii) of this section, and for a new emissions unit in accordance
with the procedures contained in paragraph (b)(47)(iii) of this
section.
* * * * *
(i) * * *
(1) * * *
(ii) The source or modification would be a major stationary source
or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of
the stationary source or modification and such source does not belong
to any of the following categories:
(a) Coal cleaning plants (with thermal dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of charging more than 250 tons
of refuse per day;
(i) Hydrofluoric, sulfuric, or nitric acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production plants;
(t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
(r) * * *
(6) * * *
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions unit identified in paragraph
(r)(6)(i)(b) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit of that regulated NSR pollutant at such
emissions unit.
(iv) If the unit is an existing electric utility steam generating
unit, the owner or operator shall submit a report to the reviewing
authority within 60 days after the end of each year during which
records must be generated under paragraph (r)(6)(iii) of this section
setting out the unit's annual emissions during the calendar year that
preceded submission of the report.
* * * * *
(w) * * *
(4) * * *
(i) * * *
(d) The PAL shall include fugitive emissions, to the extent
quantifiable, from all emissions units that emit or have the potential
to emit the PAL pollutant at the major stationary source.
* * * * *
0
4. Appendix S. to Part 51 is amended as follows:
0
a. The stay of appendix S, paragraphs II.A.5(vii), II.A.6(iii), II.A.9,
II.A.24(ii)(b), II.A.24(ii)(d), II.A. 30(i)(a), II.A.30(ii)(a),
II.A.30(iii), II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d)
published on March 31, 2010 (75 FR 16012) is lifted.
0
b. Paragraphs II.A.6(iii), II.A.9, II.A.24(ii)(b), II.A.24(ii)(d),
II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii), and II.A.30(iv) are
revised.
0
c. Temporary paragraph II.F is removed.
0
d. A new paragraph II.F is added.
[[Page 17555]]
0
e. Paragraphs IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) are revised.
0
f. Paragraph II.A.5(vii) is stayed.
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
II. * * *
A. * * *
6. * * *
(iii) An increase or decrease in actual emissions is creditable
only if the reviewing authority has not relied on it in issuing a
permit for the source under this Ruling, which permit is in effect
when the increase in actual emissions from the particular change
occurs.
* * * * *
9. Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally equivalent opening.
* * * * *
24. * * *
(ii) * * *
(b) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
* * * * *
(d) In lieu of using the method set out in paragraphs
II.A.24(ii)(a) through (c) of this Ruling, may elect to use the
emissions unit's potential to emit, in tons per year, as defined
under paragraph II.A.3 of this Ruling.
* * * * *
30. * * *
(i) * * *
(a) The average rate shall include fugitive emissions to the
extent quantifiable, and emissions associated with startups,
shutdowns, and malfunctions.
* * * * *
(ii) * * *
(a) The average rate shall include fugitive emissions to the
extent quantifiable, and emissions associated with startups,
shutdowns, and malfunctions.
* * * * *
(iii) For a new emissions unit, the baseline actual emissions
for purposes of determining the emissions increase that will result
from the initial construction and operation of such unit shall equal
zero; and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(iv) For a PAL for a major stationary source, the baseline
actual emissions shall be calculated for existing electric utility
steam generating units in accordance with the procedures contained
in paragraph II.A.30(i) of this Ruling, for other existing emissions
units in accordance with the procedures contained in paragraph
II.A.30(ii) of this Ruling, and for a new emissions unit in
accordance with the procedures contained in paragraph II.A.30(iii)
of this Ruling.
* * * * *
F. Fugitive emission sources. Section IV.A. of this Ruling shall
not apply to a source or modification that would be a major
stationary source or major modification only if fugitive emissions,
to the extent quantifiable, are considered in calculating the
potential to emit of the stationary source or modification and such
source does not belong to any of the following categories:
(1) Coal cleaning plants (with thermal dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(9) Hydrofluoric, sulfuric, or nitric acid plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process);
(16) Primary lead smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol
by natural fermentation included in NAICS codes 325193 or 312140;
(21) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(22) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(27) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
* * * * *
IV. * * *
I. * * *
1. * * *
(ii) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the
first step of the process) will occur depends upon the type of
emissions units being modified, according to paragraphs IV.I.1(iii)
through (v) of this Ruling. The procedure for calculating (before
beginning actual construction) whether a significant net emissions
increase will occur at the major stationary source (i.e., the second
step of the process) is contained in the definition in paragraph
II.A.6 of this Ruling. Regardless of any such preconstruction
projections, a major modification results if the project causes a
significant emissions increase and a significant net emissions
increase.
* * * * *
J. * * *
3. The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the
project and that is emitted by any emissions units identified in
paragraph IV.J.1(ii) of this Ruling; and calculate and maintain a
record of the annual emissions, in tons per year on a calendar year
basis, for a period of 5 years following resumption of regular
operations after the change, or for a period of 10 years following
resumption of regular operations after the change if the project
increases the design capacity or potential to emit of that regulated
NSR pollutant at such emissions unit.
4. If the unit is an existing electric utility steam generating
unit, the owner or operator shall submit a report to the reviewing
authority within 60 days after the end of each year, during which
records must be generated under paragraph IV.J.3 of this Ruling
setting out the unit's annual emissions during the year that
preceded submission of the report.
* * * * *
K. * * *
4. * * *
(i) * * *
(d) The PAL shall include fugitive emissions, to the extent
quantifiable, from all emissions units that emit or have the
potential to emit the PAL pollutant at the major stationary source.
* * * * *
PART 52--[AMENDED]
0
5. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
6. Section 52.21 is amended as follows:
0
a. The stay of Sec. 52.21 (a)(2)(iv)(b), (b)(2)(v), (b)(3)(iii)(b),
(b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a),
(b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and
(aa)(4)(i)(d), published on March 31, 2010 (75 FR 16012), is lifted.
0
b. Paragraph (a)(2)(iv)(b) is revised.
0
c. Paragraphs (b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d),
(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv) are
revised.
0
d. Temporary paragraph (i)(1)(vii) is removed.
0
e. A new paragraph (i)(1)(vii) is added.
0
f. Paragraphs (r)(6)(iii) and (r)(6)(iv) are revised.
0
g. Paragraph (aa)(4)(i)(d) is revised.
0
h. Paragraphs (b)(2)(v) and (b)(3)(iii)(c) are stayed.
Sec. 52.21 Prevention of significant deterioration of air quality.
(a) * * *
(2) * * *
(iv) * * *
(b) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the first
step of the process) will occur depends upon the type of emissions
units being modified, according to paragraphs (a)(2)(iv)(c) through (f)
of this section. The procedure for calculating (before
[[Page 17556]]
beginning actual construction) whether a significant net emissions
increase will occur at the major stationary source (i.e., the second
step of the process) is contained in the definition in paragraph (b)(3)
of this section. Regardless of any such preconstruction projections, a
major modification results if the project causes a significant
emissions increase and a significant net emissions increase.
* * * * *
(b) * * *
(3) * * *
(iii) * * *
(b) The increase or decrease in emissions did not occur at a Clean
Unit except as provided in paragraphs (x)(8) and (y)(10) of this
section.
* * * * *
(20) Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent, or other functionally
equivalent opening.
* * * * *
(41) * * *
(ii) * * *
(b) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
* * * * *
(d) In lieu of using the method set out in paragraphs
(a)(41)(ii)(a) through (c) of this section, may elect to use the
emissions unit's potential to emit, in tons per year, as defined under
paragraph (b)(4) of this section.
* * * * *
(48) * * *
(i) * * *
(a) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(ii) * * *
(a) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
* * * * *
(iii) For a new emissions unit, the baseline actual emissions for
purposes of determining the emissions increase that will result from
the initial construction and operation of such unit shall equal zero;
and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(iv) For a PAL for a stationary source, the baseline actual
emissions shall be calculated for existing electric utility steam
generating units in accordance with the procedures contained in
paragraph (b)(48)(i) of this section, for other existing emissions
units in accordance with the procedures contained in paragraph
(b)(48)(ii) of this section, and for a new emissions unit in accordance
with the procedures contained in paragraph (b)(48)(iii) of this
section.
* * * * *
(i) * * *
(1) * * *
(vii) The source or modification would be a major stationary source
or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of
the stationary source or modification and the source does not belong to
any of the following categories:
(a) Coal cleaning plants (with thermal dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of charging more than 250 tons
of refuse per day;
(i) Hydrofluoric, sulfuric, or nitric acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production plants;
(t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or
* * * * *
(r) * * *
(6) * * *
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions unit identified in paragraph
(r)(6)(i)(b) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit that regulated NSR pollutant at such
emissions unit.
(iv) If the unit is an existing electric utility steam generating
unit, the owner or operator shall submit a report to the Administrator
within 60 days after the end of each year during which records must be
generated under paragraph (r)(6)(iii) of this section setting out the
unit's annual emissions during the calendar year that preceded
submission of the report.
* * * * *
(aa) * * *
(4) * * *
(i) * * *
(d) The PAL shall include fugitive emissions, to the extent
quantifiable, from all emissions units that emit or have the potential
to emit the PAL pollutant at the major stationary source.
* * * * *
[FR Doc. 2011-6670 Filed 3-29-11; 8:45 am]
BILLING CODE 6560-50-P
